Jacqueline A. Horvat

The Court of Appeal issued a costs endorsement following an appeal where the appellant lost on the primary issue of oppression but succeeded in obtaining a new trial on an unresolved breach of contract issue.

The court found that responsibility for the failure to litigate the contract issue was divided between the parties.

Given the unusual circumstances and divided success, the court concluded that a fair costs award was for each side to bear its own costs throughout the proceedings.

The applicants invested in a Ponzi scheme through their companies.

They received payments that were reported as income and paid taxes on them.

After discovering the fraud, they applied for an order rectifying their corporate and tax records to show the payments as a return of capital, and for a declaration to that effect.

The court dismissed the claim for rectification because the documents accurately reflected the applicants' intentions at the time they were prepared.

However, the court granted a declaration that the moneys were a return of capital, without prejudice to how the payments should be treated for tax purposes by the tax authorities.

The defendant moved for additional security for costs in complex commercial litigation involving a proposed wind energy project.

The corporate plaintiffs admitted they had no material assets in Ontario and argued that they were impecunious and unable to raise funds.

The court held that impecuniosity requires full financial disclosure showing that the corporation, its shareholders, creditors, and other potential beneficiaries cannot raise funds to post security.

The evidence showed significant undisclosed financial resources and potential funding sources among shareholders and related parties, and the plaintiffs failed to meet their evidentiary burden.

Exercising its discretion under Rule 56.01(d) of the Rules of Civil Procedure, the court ordered additional security for costs in the amount of $350,000.

The appellant real estate company sued the respondents for oppression under the Business Corporations Act and for breach of contract after being locked out of a condominium project following a corporate restructuring.

The trial judge found oppression and awarded compensation but did not address the breach of contract claim.

The Divisional Court reversed the oppression finding and dismissed the entire action.

On appeal, the Court of Appeal upheld the dismissal of the oppression claim, finding the restructuring was not unfairly prejudicial because the appellant was indemnified.

However, the Court found the Divisional Court erred in dismissing the unadjudicated breach of contract claim and remitted it for trial.

The appellant, a real estate broker, created a website that provided the public with direct access to the Toronto Real Estate Board's (TREB) MLS Database.

TREB suspended the appellant's access without notice, arguing he breached the Authorized User Agreement (AUA).

The trial judge found the appellant breached the AUA by not confining his use of the database to exclusive and internal use, and that TREB was justified in suspending access without notice.

The Court of Appeal upheld the trial judge's interpretation of the AUA and dismissed the appeal.

The appellant law firm appealed an order dismissing its motion to set aside the respondent's automatic discharge from bankruptcy.

The Court of Appeal upheld the decision, agreeing that the appellant would not discover anything new and material through the bankruptcy process and that a discharge hearing would not have led to terms with practical significance for recovery.

The court noted the appellant could seek an order under s. 38 of the Bankruptcy and Insolvency Act to pursue a receivable owed to the respondent.

The appeal was dismissed with no costs.

The appellant, a user of the drug Paxil, brought a proposed class action against the respondent pharmaceutical companies alleging abuse of process, conspiracy, and waiver of tort.

The appellant claimed the respondents misused the Notice of Compliance proceedings under the Patent Act to delay the entry of a cheaper generic equivalent into the market, forcing consumers to pay supra-competitive prices.

The motion judge struck the statement of claim, finding it disclosed no viable cause of action.

The Court of Appeal upheld the decision, concluding that the appellant was not a party to the legal process initiated by the respondents, the respondents' predominant purpose was to advance their own economic interests rather than injure the appellant, and there was no predicate wrongdoing to support a waiver of tort claim.

The appellants appealed a trial judgment granting the respondent real estate broker an oppression remedy under s. 248 of the Ontario Business Corporations Act.

The trial judge had found that a corporate reorganization by the appellants was designed to defeat the respondent's claim for real estate commissions.

The Divisional Court allowed the appeal, holding that the respondent was not a 'creditor' at the time of the reorganization because no commissions were yet payable under the listing agreement.

Furthermore, the reorganization did not constitute oppression as the successor entities had provided indemnification, ensuring the original corporation was not judgment-proof.

The action was dismissed.

Following a successful appeal that set aside a Norwich order, the Court of Appeal issued an addendum to explicitly set aside the underlying December Order.

The Court also determined the costs of the proceedings below.

Departing from the general rule that costs follow the event, the Court ordered that no costs be awarded to any party for the Superior Court proceedings, citing the appellants' shifting legal positions, the unsettled nature of the law regarding Norwich orders, and the underlying conduct of the appellants.

The respondent obtained a Norwich order for pre-action discovery against the appellants to investigate alleged fraudulent conveyances and misrepresentations following a failed corporate acquisition.

The appellants appealed the order.

The Court of Appeal allowed the appeal and set aside the Norwich order, finding that the motion judge erred in principle by failing to consider whether the pre-action discovery was necessary.

The Court held that the respondent already possessed sufficient information to formulate a pleading and that the extraordinary equitable remedy of a Norwich order was not required.

The defendants appealed a motion judge's decision refusing to stay an Ontario multi-jurisdictional class action in favour of a similar Saskatchewan class action that had been certified earlier.

The defendants argued that the principles of comity and full faith and credit constitutionally required the Ontario court to defer to the Saskatchewan certification order.

The Divisional Court dismissed the appeal, holding that the motion judge was not bound to stay the proceeding, particularly given a prior Ontario carriage decision that found the plaintiffs' counsel in the Saskatchewan action unsuitable to represent a national class.

The court also found that permitting two overlapping multi-jurisdictional class actions to proceed did not constitute an abuse of process.